4 Überblick / Overview 7 Overview German social policy provisions for people with disabilities or at risk of becoming disabled were revised and codified in Book IX of the Social Code (SGB IX), which came into force on 1 July SGB IX aims to eliminate disability-related discrimination, promote self-determination for people with disabilities and for those at risk of becoming disabled, and enhance their equal participation in society by providing targeted assistance (integration assistance). A disability, as defined by law, exists when bodily functions, mental abilities or mental health deviate, for more than six months, from the condition typical for a given age so that participation in society is impaired. As a general rule, it is not necessary for a disabled person to have been assessed as having a specific degree of disability in order to claim the help and assistance that their disability requires. The term severely disabled is only used in relation to individuals who have been diagnosed as being at least 50 percent disabled. The provisions on integration for people with severe disabilities and for those with equal status are set out in Part 2 of SGB IX. The focus in SGB IX is on the disabled individual. Self-determined integration into society takes precedence over care and provision. A wide range of rules provide for involvement and participation of people with disabilities and of disability organisations. Integration assistance expressly addresses the right of claimants to express their wishes and have a choice.

5 Überblick /Overview 9 This is also the objective of the personal budget. In place of non-cash benefits or services, assistance can also be provided in the form of cash or vouchers. They know their own needs better than anyone else and can thus select and buy the assistance they need. This is a further step for disabled people towards greater self-determination, greater independence and greater selfconfidence. SGB IX covers a broad range of integration assistance for which different providers are responsible in line with the division of responsibilities in the German system of social services. These benefits and services can be grouped as follows: Medical rehabilitation assistance Occupational integration assistance Assistance to cover living expenses and other supplementary assistance Social integration assistance Assistance under SGB IX is delivered by the various rehabilitation providers except where the sections of benefit law that govern them stipulate otherwise. Many other provisions of benefit law were amended, aligned and standardised to comply with SGB IX. A range of additional provisions serve to coordinate procedures and are cross-sectional in nature. These are binding for all rehabilitation providers and, among other things, govern co operation among providers and with the disabled people they serve. But despite these provisions, overlaps between the providers and the various benefits continue to exist. Coordination, cooperation and consistency among the rehabilitation providers need to be further improved. In doing so the law-maker has to take account of the self-government rights and the constitutional restraints following from the seventh sentence of Article 87 (1) of the Basic Law.

6 Allgemeines / General 11 General 1 Persons with disabilities and persons who are at risk of becoming disabled can of course claim the same social benefits and kinds of assistance available to other citizens; the relevant stipulations apply equally to this group. This principle is reinforced by Article 3 (3), sentence 2, of the Basic Law, which provides that no one may be prejudiced on grounds of disability. As an individual basic right, this provision is directly binding on legislature, executive and judiciary, not only at federal level but also in the Länder and municipalities, and in other institutions and organisations exercising public authority. Legal relations between private individuals are indirectly affected by the ban on prejudicial treatment in so far as it has to be taken into account in the interpretation and application of civil law. Moreover, the UN Convention on the Rights of Persons with Disabilities (CRPD) entered into force in Germany on 26 March The UN Convention has equal status with ordinary German federal law and, under Article 4 (5) of the Convention, is binding on the Federal Government and the Länder. It also serves authorities and the courts as an interpretation aid for national law. This applies not only to ordinary legislation, but also notably to constitutional law. The Convention serves as an aid to interpretation for the purpose of determining the contents and scope of basic rights and constitutional guarantees laid down in the Basic Law. The aim of the Convention is to promote equal opportunities for persons with disabilities and eliminate their discrimination in society. In Germany as elsewhere, the UN Convention has thus become a central yardstick and pro vides impetus for policies that are in confor-

7 Allgemeines /General 13 mity with human rights and committed to the idea of inclusion. Article 5 (2) of the UN Convention that prohibits all discrimination on the basis of disability corresponds in its essence to the ban on discrimination laid down in Article 3 (3), second sentence, of the Basic Law. 2 The following deals with additional special provisions of social law that are deliberately aimed at the self-determination and equal participation in society of people with disabilities and people at risk of becoming disabled. If, for example, retraining for a new occupation becomes necessary because the former occupation is no longer in demand on the labour market, disabled persons are entitled to the same benefits under Book III or Book II of the Social Code and under the same conditions as non-disabled persons. However, where retraining becomes necessary as a result of disability, such retraining is considered to be part of occupational integration assistance and includes special modalities for support, as required. 3 With effect from 1 July 2001, the special social law provisions for disabled people and people at risk of becoming disabled were consolidated and enhanced in Book IX of the Social Code Rehabilitation and Participation of Disabled Persons (SGB IX). Section I of Book IX provides that disabled people and people at risk of becoming disabled receive benefits under this legislation and under the assistance and benefit laws applicable to the various rehabilitation funds in order to promote their selfdetermination and equal participation in society and to avoid or counteract any discrimination. The special needs of women and children who are disabled or at risk of becoming disabled are taken into account.

8 Allgemeines /General 15 4 The provisions of the Act on Equal Opportunities for Persons with Disabilities (Behindertengleichstellungsgesetz, or BGG), which entered into force on 1 May 2002, are not part of social law in the narrower sense. Their purpose is to implement the ban on discrimination in areas other than social law, help ensure equal rights for disabled persons in many areas of public and private life and put them into practice in everyday life. To this end, the Act includes general provisions on: The ban on discrimination for public authorities Taking account of the special needs of disabled women/gender mainstreaming The definition of the terms disability and barrier-free environments The agreement of targets for the establishment of barrier-free environments The requirement for the Federal Government to construct barrier-free buildings The recognition and use of sign language Barrier-free and accessible documents for blind and visually impaired persons involved in administrative procedures Barrier-free information technology The right of associations to take legal action It also provides for the establishment of a legal basis for the Office of the Federal Government Commissioner for Matters relating to Disabled Persons. Detailed provisions are laid down

9 Allgemeines /General 17 in the Ordinance on Communication Aids (KHV), the Ordinance on Barrier-Free Documents in the Federal Administration (BVD), both dated 17 July 2002, and the Ordinance on Barrier- Free Information Technology (BITV) of 17 July The Act on Equal Opportunities for Persons with Disabilities also introduced provisions in other laws aimed at implementing equal opportunities and establishing barrier-free environments in: Federal and European elections The conveyance of passengers in local public transport, by rail and air, with financial assistance from the Federal Government specifically for barrier-free transport projects Accessibility and usability of catering establishments Equal opportunities in higher education Non-discriminatory wording of work-related regulations 5 Along with the Act on Equal Opportunities for Persons with Disabilities (Behindertengleichstellungsgesetz, or BGG), the General Equal Treatment Act (AGG) is also worth mentioning. It was long referred to as the Anti-Discrimination Act and entered into force on 18 August With this Act, the Federal Government transposed into national law a total of four EU directives banning discrimination on grounds of race, ethnic origin and gender. For people with disabilities, the Act also provides protection from disability-based discrimination at work and in large parts of everyday life.

10 Allgemeines /General 19 The Act protects disabled people from discrimination in everyday transactions such as contracts of purchase, hotel bookings and entering into insurance policies. The provisions of the Act require, for example, that in case of dispute private insurance companies must provide proof that their insurance premiums and the prices for their services and products have been calculated in relation to the risk involved and according to the generally accepted actuarial principles, and that people with disabilities are not arbitrarily placed at a disadvantage. Protection afforded under the General Equal Treatment Act (AGG) also encompasses all areas of working life, from vocational education and training to job applications to rules on ending an employment relationship. Under the Act, disabled people may not be discriminated against on grounds of their disability when applying selection criteria and recruitment requirements or in the provision of access to vocational education and training and upward mobility. The anti-discrimination provision contained in SGB IX, which previously applied only to severely disabled persons, now applies to all people with disabilities. This gave Germany its first piece of full-blown anti-discrimination legislation, a key legal prerequisite in providing equal participation in society. 6 The UN Convention on the Rights of Persons with Disabilities has also applied in Germany since 26 March The Convention builds on the Universal Declaration of Human Rights and the UN covenants on human rights and formulates the key provisions of these documents for the situation of people with disabilities. The purpose of the Convention is to promote, protect and ensure the full and equal enjoyment of all human rights

11 Allgemeines /General 21 and fundamental freedoms by all persons with disabilities. In other words, rather than creating any special rights, it casts the universal human rights in more concrete and specific terms from the perspective of people with disabilities and in light of their situation, which must be taken into account in the protection of human rights. It acknowledges disability as part of human diversity. The rights specified in the Convention e.g. include the right to education, the right to work or the right to participation in cultural life. In this context, the individual articles apply the abstract concept of participation to specific spheres of life, describing concrete measures and objectives for the implementation of equal opportunities. The paradigm shift in disability policy that has already taken place in Germany with Book IX of the Social Code and the Act on Equal Opportunities for Persons with Disabilities (BGG) is paralleled and further developed at international level by the Convention. For the purpose of implementing the Convention, the Federal Cabinet adopted a National Action Plan on 15 June In this action plan, the Federal Government has committed itself inter alia to taking into account the special needs of disabled people in all political projects and legislative initiatives from the outset (disability mainstreaming) and to closing existing gaps between the legal position and actual practice. The National Action Plan comprises some 200 smaller and larger measures in all areas of life. Inclusion is its central theme and policy principle. The Federal Government has thus developed a long-term overall strategy for the implementation of the UN Convention on the Rights of Persons with Disabilities, which is intended to act as a driving force for changes over a ten-year timeframe. The aim is an inclusive society with disabled people right in the middle and not only just there. The National Action Plan is not to be

12 Allgemeines /General 23 seen as a final document. On the basis of an evaluation report presented in autumn 2014, it is to be further developed in 2015 in joint consultation with people with disabilities and their organisations. The action plan of the German Federal Government is continually supplemented with further action plans of the Länder, municipalities, disability and social welfare organisations as well as service providers for people with disabilities and private sector enterprises. People with disabilities 7 Under Section 2 (1) of Book IX of the Social Code, people with disabilities or disabled persons are individuals whose bodily functions, mental abilities or mental health are highly likely to deviate for more than six months from the state that is typical for their age and whose participation in society is therefore impaired. The same definition can be found in Section 3 of the Act on Equal Opportunities for Persons with Disabilities (BGG). This definition, which follows proposals issued by the World Health Organisation, is not based on real or supposed deficits. Instead it focuses on participation in different areas of life. A deviation from the typical condition means the loss or impairment of physical, mental or psychological structures normally present at the respective age. A disability exists if this impairment restricts participation and thus affects one or several areas of life. The requirement of a probable duration of the restriction of six months excludes temporary impediments but not interventions to be taken as early as necessary in individual cases; this applies in particular if children are disabled or at risk of becoming disabled.

13 Allgemeines /General 25 8 The same deviation from the age-typical condition and the same functional restriction can lead to very different restrictions when it comes to participating in everyday life. The loss of the left middle finger would hardly prevent a civil servant from going about his or her work, but it would seriously affect a violinist s ability to play. Even severe impairments and limitations do not normally have the same effects in all areas of life; a person with health impairments suffers only from certain functional restrictions, which means they are disabled only in respect of certain activities and areas of participation, while their performance and participation capacity may be undiminished or even unusually high in other areas of life. Accordingly, it is important to first consider a person s individual abilities and to keep in mind that the individual assistance required by persons with disabilities may differ greatly even though the restrictions may be the same. 9 This differentiation by individual ability has become more and more important in the past and will continue to do so. In 2001, the WHO General Assembly, with German involvement, adopted and recommended that its members should implement the International Classification of Functioning, Disability and Health (ICF). The ICF is a new instrument for classification of functional health that also takes into account an individual s personal and general context (facilitators and barriers). It defines functional health in terms of an individual s personal interactions between health disorders (e.g. very poor sight in excess of nine dioptres) and context factors (e.g. provision of spectacles). The ICF makes it possible not only to describe consequences of health conditions and disability by reference to the resulting deficits ( nearly blind ), but also to incorporate the resources (currently) available to the individual (spectacles enable full participation). Contextual factors can act positively or negatively and can increase or reduce the success of rehabilitation. Application of the ICF supports person-centric planning

14 Allgemeines /General 27 of rehabilitation processes and the tailor-made design and development of aids and assistance. The Federal Ministry of Labour and Social Affairs is funding a study to identify the need for occupational integration assistance by taking account of the ICF. A priority aim of this study is to examine how far the International Classification of Functioning, Disability and Health (ICF) could be a suitable guidance. Use of the ICF is only spreading gradually and in many cases on a piecemeal basis, but we are only at the start of the process. In the long term, the term disability will be understood in a more discerning manner. 10 Severely disabled persons are disabled persons whose degree of disability is determined to be at least 50 percent and who either lawfully reside in the Federal Republic of Germany, have their ordinary residence here or are employed here (Section 2 (2) of Book IX of the Social Code). At the end of 2013, there were million severely disabled people living in Germany; this represents 9.4 percent of the population. It is worth of note that compared with this overall total, the percentage of severely disabled persons is clearly higher in the group aged 60 and over and clearly lower among younger people. 11 The specific, very different forms of support and assistance (relative to the type and degree of disability) that people with disabilities require in order to participate in working life and in society in general are not usually dependent upon whether a (severe) disability has been officially diagnosed. Rather, the existence of a disability is one of several criteria that determine eligibility for assistance and is subject to assessment by the responsible rehabilitation fund when it decides on the granting

15 Allgemeines /General 29 of social benefits. The determination of the degree of disability by means of a formal procedure provided for by the law on severely disabled persons (Part 2 of Book IX of the Social Code) is only relevant for the special forms of assistance and rights it specifies (for details see No. 99 onwards) and for tax relief and other forms of compensation for disadvantages. 12 It is important that definitions should not further the conceptual and social exclusion of persons with disabilities, but instead serve as an indication of their individual problems and opportunities. They should also indicate how each person can gain access to the assistance they require to participate in everyday society. The aim is also to help other groups achieve the same degree of progress and the standards achieved by individual groups of disabled persons and to enable all disabled persons and their families to lead a life that is as normal as possible. Integration assistance 13 Under Section 4 (1) of Book IX of the Social Code, integration assistance includes social assistance that, regardless of the cause of a person s disability, is necessary: To avert, eliminate, or alleviate a disability, to prevent its aggravation or to reduce its effects To avoid, overcome or alleviate reductions in earning capacity or the need for long-term care or prevent an aggravation and to avoid other social benefits being claimed prematurely or to reduce amounts claimed To secure permanent participation in working life in accordance with a person s leanings and abilities

16 Allgemeines /General 31 To promote an individual s personal development in a holistic approach, enable their participation in the life of society and facilitate a life as autonomous and self-determined as possible A corresponding provision is laid down in Section 10 of Book I of the Social Code as a general right of integration to be observed in all social assistance areas. 14 These requirements do not only help to interpret and apply social law but are also generally recognised as guidelines for disability policy in the Federal Republic of Germany. Of the principles derived from them, the following require special emphasis: The aim of participation, based on self-determination and individual responsibility, of disabled persons in society The principle of finality according to which the necessary assistance must be offered to every disabled person and person at risk of becoming disabled regardless of the cause of their disability, even when responsibility for this assistance is held by a number of different funds and institutions whose eligibility requirements for the provision of assistance vary The principle of intervention at the earliest possible stage in order to minimise the degree and effects of disability and to compensate as far as possible for unavoidable effects while taking into account what is possible and necessary in each individual case The principle of providing individual assistance, which must be tailored to the actual needs of each person with disabilities or person at risk of becoming disabled and meet their needs by suitable means.

17 Allgemeines /General When account is taken of the principle of intervention at the earliest possible stage, as laid down in the provision of Section 4 of Book IX of the Social Code, it becomes clear that the most suitable time for intervention in individual cases is always at as early a stage as possible. Disability and Intervention (Prevention to the greatest possible extent) Physical, mental or psychological condition deviates from the condition which is typical for the respective age (Intervention to the greatest possible extent) Restrictions of activity which are not merely of a temporary nature (Intervention to the greatest possible extent) Restrictions on participation in the life of society (Compensation by means of care/pensions/other assistance as necessary)

18 Allgemeines /General 35 The incorporation into German law of the three-tiered concept for people with disabilities as defined by the World Health Organisation indicates the different levels on which assistance may be provided: Where threatening or existing impairments are involved, by means of prevention measures, e.g. healthy living, accident prevention and other ways of avoiding or reducing risk, use of prophylactic measures, and the provision of rescue services or medical treatment and rehabilitation Where limited activity is concerned, by providing assistance to compensate for functional restrictions, e.g. orthopaedic appliances, functional training or technical aids to equip the workplace In the case of restricted participation, by avoiding or removing barriers or by choosing an occupation that permits or facilitates employment despite the functional restrictions. An important case for the application of the principle of intervention at the earliest possible stage is that medical rehabilitation assistance and occupational integration assistance take priority over payments of pensions if no pension is to be paid or is not to be paid until a later date as a result of successful integration assistance (Section 8 (2) of Book IX of the Social Code, Section 9 (1) of Book VI of the Social Code) known as the principle of integration assistance before pension payments. The same applies if integration assistance helps to avoid, overcome or alleviate the need for long-term care or prevent its aggravation under the principle of integration assistance before long-term care (Section 8 (3) of Book IX of the Social Code, Section 5 of Book XI of the Social Code).

19 Allgemeines /General Integration assistance with the aims specified in Section 4 of Book IX of the Social Code is provided in the following categories: Medical rehabilitation assistance Occupational integration assistance Social integration assistance to aid participation in community life Medical rehabilitation assistance and occupational integration assistance are supplemented by a further assistance category: income support and other supplementary assistance ; this does not apply to youth welfare and social assistance. 17 There is no single independent social assistance fund responsible for integration assistance as a whole or for specific assistance categories. Instead it is part of the other responsibilities of various assistance funds which, where integration assistance is concerned, are referred to as rehabilitation funds. Under Section 6 of Book IX of the Social Code, the following assistance and benefits are provided: Medical rehabilitation assistance is provided by the health insurance, pension insurance and occupational accident insurance funds and by the funds providing compensation in the event of health impairment. Occupational integration assistance is provided by the Federal Employment Agency and the funds providing basic income support for job seekers, the pension and occupational accident insurance funds and the funds providing compensation in the event of health impairment. Social integration assistance is provided by the occupational accident insurance funds and by the funds providing compensation in the event of health impairment.

20 Allgemeines /General 39 The Federal Employment Agency provides occupational integration assistance both as an assistance fund in accordance with Book III of the Social Code and also as a fund providing basic income support for job seekers in accordance with Book II of the Social Code, in the latter case in addition to the local authorities authorised to carry out this task in their own right. Given their comprehensive range of responsibilities, the funds responsible for public youth welfare and social assistance step in as subsidiary funds for all types of integration assistance where the required assistance cannot be obtained from funds primarily responsible because the respective eligibility requirements are not met in individual cases. On the whole, integration benefits are provided by eight categories of rehabilitation funds (see chart). benefits aimed at Occupational accident insurance Social compensation Health insurance Pension insurance Federal Employment Agency Income support for jobseeker Youth welfare Social assistance X X X X X X medical rehabilitation participation in working life X X X X X X X participation in community life X X X X 18 The question as to what integration assistance is provided by which rehabilitation fund and under what conditions depends on the assistance laws applicable to the individual rehabilitation funds (Section 7, sentence 2, of Book IX of the Social Code); this takes account of the fact that the established

21 Allgemeines /General 41 system consists of various branches. Thus, pension insurance assistance may only be granted to persons who are covered by that scheme and social assistance only to those who meet the requirements of that particular scheme; the relevant provisions are laid down in the respective Books of the Social Code and in other laws on the provision of assistance. In contrast, provisions on the nature and objectives of integration assistance that can be similar for various social assistance areas are to be found in a single piece of legislation in Book IX of the Social Code. This is meant to illustrate that the common objective of integrating disabled persons and persons who are at risk of becoming disabled into society to the greatest possible extent is generally pursued in the same way by all rehabilitation funds responsible in individual cases. Due to the consolidation of provisions that apply uniformly to several social assistance areas, Book IX of the Social Code applies across the board in a similar way to the pro visions of Books I, IV and X of the Social Code that were already in place. Given the particularities of a multi-branch system, these uniform provisions can only apply if the assistance legislation applicable to the individual rehabilitation funds does not provide otherwise; when drafting Book IX of the Social Code, however, many earlier special provisions contained in individual assistance laws were repealed, replaced by references to Book IX of the Social Code or amended in substance. 19 The rehabilitation funds are under obligation to cooperate. Under Section 13 of Book IX of the Social Code, ambiguous respon sibilities between the various rehabilitation funds should be solved wherever possible by mutual agreement in the form of joint recommendations (issued by the Federal Working Group on Rehabilitation). The disability associations, including voluntary welfare organisations, self-help groups, disabled women s interest groups and the central associations representing the interests of outpatient and inpatient rehabilitation institutions are involved in the preparation of such joint

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